Bombay High Court
Sudhakar Laxman Jagtap vs Laxman Maruti Jagtap And Others on 1 March, 2021
Bench: V.K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
20 WRIT PETITION NO. 11887 OF 2015
SUDHAKAR LAXMAN JAGTAP
VERSUS
LAXMAN MARUTI JAGTAP AND OTHERS
......
Advocate for Petitioner : Mr. P. V. Barde h/f
Mr. P. D. Sangwikar.
Advocate for Respondent Nos. 1 & 2 : Mr. S. A. Deshmukh
Advocate for Respondent Nos. 3 & 4 : Mr. Mahesh K. Bhosle
Advocate for Respondent Nos. 5 to 7 : Mr. Mukund S. Patil
AGP for Respondent No. 8 : Mr. R. D. Sanap
.....
CORAM : V. K. JADHAV, J.
DATED : 01ST MARCH, 2021
PER COURT :-
1. By consent, heard finally at admission stage.
2. The petitioner/original plaintiff, in the pending appeal
bearing Regular Civil Appeal No. 154 of 2010, had filed an
application for adding his six sisters as party to the suit. The
petitioner had instituted the suit bearing Regular Civil Suit
No. 162 of 2006 for partition, separate possession and
mesne profit. By judgment and decree dated 22.03.2010, the
Joint Civil Judge, Senior Division, Osmanabad has dismissed
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the said suit with costs. Being aggrieved by the same, the
petitioner/plaintiff has preferred said Regular Civil Appeal
No. 154 of 2010 in which he had filed the application
Exhibit 20 under Order I Rule 10 of the Civil Procedure Code
for adding his six sisters as party to the suit. By the
impugned order dated 26.10.2015 the District Judge-2,
Osmanabad has rejected the said application.
3. Learned counsel for the petitioner submits that the
trial court has recorded the finding in the affirmative to issue
no. 5-a as to whether the suit is bad for non joinder of the
necessary partes. Learned counsel submits that the petitioner
is the son of defendant no.1 as as such, the daughters of
defendant no.1 (sisters of petitioner-plaintiff) are necessary
parties to the suit seeking a decree of partition and separate
possession. Learned counsel for the petitioner has placed his
reliance in a case Vineeta Sharma v. Rakesh Sharma and
Others, reported in (2020) 9 SCC 1, wherein, the Supreme
Court has ruled that the daughters are necessary parties in a
suit for partition and separate possession
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4. Learned counsel for the respondents submit that since
the plaintiff has lost the suit, in the pending appeal in order
to fill up the lacuna the plaintiff has filed the application for
addition of the parties. Learned counsel submit that the trial
court has recorded the finding in the affirmative to issue no.
5-a and the suit is dismissed mainly on the ground of non
joinder of the necessary parties along with the other issues.
5. I have also heard learned counsel for the respondent-
State.
6. It appears that the petitioner-plaintiff has instituted
the suit for a decree of partition and separate possession in
respect of the ancestral properties. Though the trial court has
recorded the finding in the negative as to the nature of the
suit properties as not the ancestral properties of the Hindu
joint family, however, it is for the appellate court to re-assess
the evidence in the pending appeal and in view of the same,
the sisters of the petitioner/plaintiff (daughters of
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respondent no.1/defendant no.1) are the necessary parties.
In the case of Vineeta Sharma (supra), the Supreme Court
has recently ruled that in a suit for partition and separate
possession, the daughters are necessary parties.
7. In view of the above, the order impugned is not
sustainable in the eyes of law. Hence, the following order:
ORDER
I. The Writ Petition is hereby allowed.
II. The impugned order dated 26.10.2015 passed below
Exhibit 20 in Regular Civil Appeal No. 154 of 2010 by
District Judge-2, Osmanabad is hereby quashed and set
aside.
III. The application Exhibit 20 in Regular Civil Appeal No.
154 of 2010 is allowed in terms of its prayer clauses.
IV. The Writ Petition is accordingly disposed off.
( V. K. JADHAV, J. )
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